Law Times

Law Times • January 9, 2012 O Western grain emerges as surprising legal issue The n Dec. 7, Federal Court Justice Douglas Camp- bell handed down a sur- prise ruling on the Canadian Wheat Board that went against Prime Min- ister Stephen Harper. Campbell ruled the Harper gov- ernment had failed to follow a provi- sion in the law governing the wheat board that says that it must consult farmers if it wants to abolish the mar- keting agency's monopoly over west- ern Canadian wheat and barley. Harper had never formally con- sulted wheat farmers. He knew that if he had held a plebiscite on whether to abolish the board's monopoly over grain, he would have lost. A plebiscite held by the board went against him by a two-to-one margin. Harper chose to ignore it. Not to be outdone by the Federal Court decision, Harper said he'd go to the Federal Court of Appeal on the grounds that Campbell had wrongly interpreted the sections of the law on how the government should consult wheat board farmers. Harper insisted his May 2 election victory was consultation enough and that he knows what's good for western Canadian wheat and barley farmers. Using his majorities in the House of Commons and the Senate, he rushed his legislation through Parlia- ment on Dec. 15 before it adjourned for the holidays. His omnibus crime legislation would have to wait until the new year. It was a matter of pri- orities. Grain came fi rst, then crime. In the meantime, Liberal Leader Bob Rae asked Gov. Gen. David Johnston on behalf of western grain farmers if he would, out of respect for the Federal Court of Appeal, hold off on giving Royal assent to the Harper legislation until after its ruling on the prime minister's legal challenge. Rae, a respected lawyer versed in constitutional issues, wrote: "Th is Conservative government is using its majority to force through legislation to kill the Canadian Wheat Board, despite the federal court's ruling that the agriculture minister's conduct is an aff ront to the rule of law. We hope that the governor general will use his discretion and prevent this illegal bill from becoming law." Farm groups opposed to the end of the board's monop- oly joined in on Rae's request. But Johnston rejected their pleas and immediately gave Royal assent before the Federal Court of Appeal could rule on the issue. Editorial Correspondence CRIMINAL ACTS NOT MISTAKES "Your entire life is completely derailed by this one mistake," says defence lawyer Roots Gadhia. Criminal convictions seldom stem from mistakes. It's typically a mistake, for instance, to write 2011 instead of 2012 early in the new year. Th e actions that underlie crimes, in contrast, normally are the function of informed, albeit poor, choices. In such circumstances, the label mistake wrongly suggests that such acts are not a true refl ection of free will. And so, of course, Gadhia says, mistaken acts should be pardoned and expunged from the record. It is unfortunate that the issue cannot be debated more openly. Comment on lawtimesnews.com by Mick Patrick about "Pardons become record suspensions." Hill By Richard Cleroux Th en on Dec. 16, Harper fi red the eight wheat board directors elect- ed by grain farmers. Th e remaining fi ve directors appointed by Harper quickly told the board's lawyers to drop their legal challenge of the gov- ernment's new law. In Ottawa, the Conservatives cele- brated. So did the big American fl our mills and private grain companies. Soon, Canadian grain farmers will be coming to them to sell their products. It would no longer be the powerful Canadian Wheat Board setting the price of grain on behalf of farmers. Conservative government spokes- people were saying in Ottawa, mean- while, that it was all perfectly legal and that when both houses of Parliament have adopted a law, the governor gen- eral doesn't have the constitutional power to withhold Royal assent. But lawyers who aren't so friendly to Harper and his government have been asking publicly what's the pur- pose of Royal assent if the governor general can't withhold it. For constitutional experts, it pres- ents an interesting issue and some- thing that's likely to end up in the courts later this year. Is it interesting enough to go all the way to the Supreme Court? Harper has gone to the top court previously and lost. Should the Supreme Court end up being asked to rule on the mat- ter, would Harper hold off on his of- fi cial abolition of the wheat board's monopoly on Aug. 1 out of respect for the highest court in the land or does his eagerness to end the board's authority outstrip his respect for the judicial process? Who would have guessed that farm legislation to determine wheth- er the Canadian Wheat Board's mo- nopoly should continue or whether western Canadian grain and barl ey farmers should be able to sell their crops directly to American compa- nies could end up testing clauses in our Constitution? Richard Cleroux is a freelance repor- ter and columnist on Parliament Hill. His e-mail address is richardcleroux@ rogers.com. I COMMENT Tips to handle difficult media interviews BY DAVID EISENSTADT For Law Times n an ideal world, people in the public eye get a fair shake in the media. But whether or not that happens is always a topic of debate. Here's the scenario: your legal team has just come through a tough case for a dif- fi cult client. Despite the best eff orts to re- solve the issues, your client threatens to go to the media. Th e possibility that the real or imagined bad news about this experi- ence could be on Facebook or Twitter will doubtless give you sleepless nights. So what are you to do? Th ere's no question that reporters can create certainly an uncomfortable expe- rience for lawyers, in- terrupt your already hectic schedule, and be the source of cov- erage of events that you may prefer to re- main in the background. By and large, that's simply too bad. As a member of the legal profession, you owe it to your clients, industry, staff , and stakeholders to enhance your fi rm's (and your personal) visibility in the mar- ketplace. Your client's problem with the news media is now your problem. Neither you nor the client can avoid the news me- dia except when it suits you to go after fa- vourable news coverage. So the reporter from the local TV sta- tion calls you or you client. What are you going to do? How will you respond? Th ere's nowhere to run or hide. Clearly, it's much better to accept the necessity and even the desirability of becoming an accessible spokesperson in order to have your client's side of the story told truth- fully. You need to remember that you and your client are merely the subjects of the interview. If you know what you're doing and prepare yourself, you needn't become the interviewer's victim. Here are a few recommendations to help you and your clients survive those tough interviews, whether live at a news conference, in front of your establishment, on the street in a scrum or by phone: • Prepare for all major interviews. Th e best place to start is with the facts and the truth. Don't assume your closeness to the situation means you've got all the answers. • Make sure your clients understand what they can legally say during an interview. Ideally, you'll be present, but in case someone approaches your clients by sur- prise, they should know what to say even if it's to not comment at that time. • Vocalize your responses in advance. Know- ing a subject thoroughly and crafting a writ- ten response in the clearest and simplest terms is helpful. But you won't really know how clearly you can explain something un- til you do just that. Start with a sympathetic listener on your home turf. Yes, even Prime Minister Stephen Harper has been known to rehearse his with ministers in order to clearly enunciate targeted messages. • Supply background material. It helps journalists to have explanatory informa- tion on details they may not have known enough about to ask. It also saves time you'd waste covering background you www.lawtimesnews.com Speaker's Corner can simply refer to in the written mate- rial. Your function should be to comment on issues and situations, not to conduct a seminar on what those issues are for the interviewer. • Maintain some control from the begin- ning. In face-to-face interviews, begin if there's time by asking the journalists about their background. It makes the following conversation sound less like the interroga- tion of a hostile witness. You can't do this eff ectively in a phone interview. If the in- terviewer is a novice, it helps to reinforce your credentials as the expert in this mat- ter. If the interviewer is highly knowledge- able, you've been forewarned. • Don't allow the apparent simplicity of questions to mislead you. Anyone worth an interview is worth being quoted direct- ly. Th e interviewer may understand a concept as well as you do but may want it explained in your own words. • Refuse to answer hypothetical questions. You might turn them around by explaining what your organization's policy has been in the past, but there's nothing to gain by locking yourself into a position based on a hypothetical situation. If the question is intended to develop an illustration of some point, off er a real-life example instead if you can. Beware: hypothetical questions are an excellent means of leading someone into a trap. • Don't presume to redirect the story line. You or your client may well prefer news coverage of something unrelated to what the editor or reporter wants to write about. Th e interviewer may listen politely, but if what you say is considered a non-story, you've wasted time. Th e more helpful you are in responding to the questions, the bet- ter the chances are of improving your de- sired position in the fi nal article or on-air program. • Conduct interviews without interrup- tion. Avoid discussing business matters with colleagues in front of the interview- er, who remains attentive and on the job the whole time even when you aren't. You may inadvertently let slip information you don't want made public. • Don't try to buff alo a journalist, even a novice. You'll only get away with it as long as the interview lasts. Eventually, your comments will cross the desk of a worldly editor or producer who'll recognize baffl e- gab for what it is. • Refer the interviewer to other sources. In any type of industry-wide coverage, the interviewer may defer to the pressures of time and rely on the leads you provide. Recommend sources with viewpoints sim- ilar to your own, such as a law association spokesperson. A fi nal consideration: media training. If you and your clients learn how to handle the news media, you can deal with anyone. In today's world, especially when it comes to stories concerning the law, communicat- ing accurately is more important than ever before. David Eisenstadt is founding partner of the Communications Group Inc., a Toronto- based public relations consulting fi rm. He can be reached at 416-696-9900 or deisen- stadt@tcgpr.com. PAGE 7

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